RE BUI NAM TRUNG

CACV 108/2023, [2023] HKCA 753

On Appeal From [2023] HKCFI 824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 108 OF 2023

(ON APPEAL FROM HCAL NO 784 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 30 March 2023, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2023] HKCFI 824).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 14 March 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 28 February 2018 rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of Vietnam.  He claimed to have entered Hong Kong illegally from Shenzhen on 28 October 2016.  He was arrested by the police on 1 November 2016.  On 9 January 2017, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor for his failure to repay his debts.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

4.  By a Notice of Decision dated 28 February 2018 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

5.  The applicant then appealed against the Director’s Decision to the Board on 13 March 2018.  After considering all the materials before the Board, the Board decided to determine his appeal on paper.  Having assessed and considered the totality of the evidence, the Board determined that the applicant would not suffer any real risk of harm upon refoulement as claimed and that any dispute between the applicant and his creditor was merely personal and private in nature.  The Board also considered that state protection and internal relocation would be available to the applicant upon his return to his home country.  Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

6.  On 21 March 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In his Form 86, the applicant did not state any ground of review.  In his supporting affirmation, he only repeated the factual basis of his non-refoulement claim. As the applicant did not request for an oral hearing, the Deputy Judge considered and determined his application on paper.

7.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  In essence, the Deputy Judge considered that the applicant had failed to provide any proper ground of review and there was no procedural unfairness, unreasonableness or error of law in the Board’s Decision.  See Leave Decision at [12] - [18].

The Appeal

8.  On 11 April 2023, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he only stated:

“I want to review my case.”

9.  Pursuant to the directions made by the Registrar of Civil Appeals on 24 April 2023, the applicant lodged his written submissions on 3 May 2023.  In those submissions, he raised 6 grounds of appeal namely:

(1)  The Board’s decision not to hold an oral hearing amounts to procedural unfairness; (“Ground 1”)

(2)  The Board had misplaced reliance on the irrelevant matter that the creditors only wanted repayment without paying due regard to the relevant matter that the applicant suffered grievous bodily harm and mental suffering; (“Ground 2”)

(3)  The Board had been procedurally unfair in not inviting the applicant to make further representations and to be heard orally before reaching the finding that the applicant did not know much about the background of his creditors and that the acts done by the creditors had nothing to do with the state; (“Ground 3”)

(4)  The Board had failed to exercise independent assessment in its reliance on the Country of Origin materials (“COI”)  such as e-newspaper and ought to have allowed the applicant to state his position orally; (“Ground 4”)

(5)  The Board had been irrational in accepting the facts that the applicant had been pummeled, bludgeoned and threatened with death by his creditors and then coming to the conclusion that the applicant had failed to adduce any sufficient evidence to show that his physical injury and mental suffering met the minimum level of severity as required by law; and (“Ground 5”)

(6)  The Board had failed to take into account of any undue hardship that would be caused to the applicant following internal relocation. (“Ground 6”)

Discussion

10.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

11.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

12.  At the outset, it is noted that all the grounds advanced by the applicant in his written submissions are new and not raised before the Deputy Judge.  The applicant also did not give any reason as to why these grounds were only raised on appeal and not before the Deputy Judge.  It is well established that this court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  In any event, the applicant’s contentions are also general and bare assertions without any specific particulars or evidence in support.  They do not constitute proper grounds of appeal and we refuse to entertain those arguments.  The appeal must fail on this basis alone.

13.  In any event, as will be further elaborated below, the grounds advanced by the applicant are wholly without merit.

14.  As to Ground 1, the applicant failed to provide any specific particulars or supporting evidence to show how he had suffered any prejudice from the Board’s decision not to hold any hearing.  The applicant had also failed to show or further elaborate on what the “worthwhile representations” as claimed were.  Accordingly, there is no substance in Ground 1.

15.  In relation to Grounds 2, 3 and 5, they are plainly misplaced.  In reaching its decision, although the Board considered the applicant’s allegations that he had been beaten by the creditors, the Board also took into account the fact that the applicant was not hospitalised and that his injuries were recovered in one month.[5]  On the evidence, the Board also found that the creditors’ main concern was the applicant’s repayment of the outstanding loan instead of inflicting further harm on the applicant.[6]  The Board thus came to the conclusion that the harm and suffering whether physical or mental as claimed by the applicant did not reach the minimum level of severity meriting non-refoulement protection.[7]

16.  As repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In our view, those findings by the Board were reached after careful consideration of the individual circumstances of the applicant and were open for the Board to make.  It is equally open for the Board to come to the view that on the evidence, the dispute between the creditor and the applicant was a personal and private one without any state involvement.[8] Furthermore, although the process before the Board was one of joint endeavour, the burden remained on the applicant to substantiate his case with evidence.  We see no errors of law or procedural unfairness or irrationality in the decision of the Board.  Accordingly, Grounds 2, 3 and 5 also fail.

17.  Equally, there is no substance in Grounds 4 and 6.  As evident from [19] - [27] of the Board’s Decision, the Board had considered a variety of COI in determining the country conditions in Vietnam and the availability of state protection to the applicant.  As to internal relocation, the Board had also considered the relevant country conditions and the applicant’s individual circumstances when reaching its decision that internal relocation would be available: see [43] - [46] of the Board’s Decision.  Even until now, the applicant has failed to show with specific particulars what further representations he wished to make.  Accordingly, we see no substance in the applicant’s submissions and Grounds 4 and 6 must be rejected.

18.  At the hearing of the appeal, the applicant further submitted that the Director formed the view that the police in Vietnam could provide protection to him if needed.  However, he said that the police could not be always around him and thus he would still face with all the risks posed from the creditor that he had asserted.  Moreover, the applicant alleged that he could not find his parents in Vietnam, and if refouled, all his relatives would also refuse to help him because they are afraid of the risks.  For the same reasons we have explained above, these latest allegations also do not amount to proper grounds of appeal against the Leave Decision.

19.  In the premises, the appeal has no merit and we dismiss it.